United States: Appeal Of Revised E.O. Before SCOTUS Deemed Moot

New Travel Restrictions Challenged in Separate Federal Court Actions

As detailed in our previous alert on this issue, on September 24, 2017, President Trump issued a Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats ("Presidential Proclamation") that revises President Trump's second Executive Order regarding travel restrictions ("Revised E.O.") by: 1) removing the travel restrictions previously imposed against Sudan; 2) adding travel restrictions against Chad, North Korea, and Venezuela; and 3) making the travel restrictions indefinite rather than temporary. In the wake of this most recent Presidential "travel ban," the United States Supreme Court deemed the pending appeals regarding the Revised E.O. moot because it "expired by its own terms," and shortly thereafter, two lower federal courts in Hawaii and Maryland enjoined the Presidential Proclamation, which was intended to replace the Revised E.O., just a day before it was to take effect. Employers who are monitoring how the travel restrictions might impact their business should stay tuned for further developments following the Hawaii and Maryland injunctive orders.

The United States Supreme Court Deems Appeal of Revised E.O. Moot

We previously noted, that on September 25, 2017, the United States Supreme Court removed from the oral argument calendar cases from the United States Court of Appeals for the Ninth and Fourth Circuits, which enjoined key provisions of the Revised E.O., and ordered the parties to file letter briefs on or before October 5, 2017, addressing whether, or to what extent, the Presidential Proclamation may render the cases moot. On October 10, 2017, the United States Supreme Court held that because the Revised E.O. "expired by its own terms" on September 24, 2017, the United States Government's appeal of the consolidated cases no longer presents a "live case or controversy." Accordingly, the Court remanded the case to the Fourth Circuit Court of Appeals with instructions to dismiss as moot the challenge to the Revised E.O.

Two Federal Court Actions Filed

In early October 2017, shortly after the Presidential Proclamation was issued, several plaintiffs' groups—a combination of individuals and organizations—in Hawaii and Maryland filed federal court complaints seeking emergency injunctive relief against the Presidential Proclamation on various statutory and constitutional grounds.

The District Court of Hawaii Enters Nationwide Temporary Restraining Order

On October 17, 2017, one day before key provisions of the Presidential Proclamation were scheduled to take effect, the United States District Court for the District of Hawaii entered a nationwide temporary restraining order ("TRO") enjoining the United States Government from enforcing or implementing Sections 2(a), (b), (c), (e), (g), and (h) of the Presidential Proclamation. The court concluded that:

  1. plaintiffs met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim;
  2. irreparable injury would be likely if the court did not grant the requested relief; and
  3. the balance of the equities and public interest weighed in favor of granting the temporary restraining order.

Specifically, the court stated that Presidential Proclamation ignores the guidance previously afforded by the Ninth Circuit Court of Appeals and "suffers from precisely the same maladies as its predecessor" because it:

  1. lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be detrimental to the interests of the United States; and
  2. plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) of the Immigration and Nationality Act ("INA"), which bars discrimination on the basis of nationality in the issuance of immigrant visas, and the founding principles of the United States of America.

In light of the court's order, visa applicants who are nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen are not subject to any of the restrictions under the Presidential Proclamation. However, the order does not affect Sections (d) and (f) of the Proclamation; thus, as of October 18, 2017, nationals from North Korea and Venezuela remain subject to the travel restrictions in the Presidential Proclamation.

On October 17, 2017, the White House Office of the Press Secretary released an official Statement Regarding Court Action Affecting the President's Proclamation Regarding Travel to the United States by Nationals of Certain Countries and indicated that the United States Department of Justice will appeal the district court decision.

On October 20, 2017, the District Court for the District of Hawaii converted the TRO into a preliminary injunction, which will remain in place during the Department of Justice's appeal.

The District Court of Maryland Issues a Nationwide Preliminary Injunction Against Portions of the Presidential Proclamation

On October 17, 2017, hours after the Hawaii decision, a federal judge in Maryland issued a nationwide preliminary injunction against Section 2 of the Presidential Proclamation. Specifically, the court noted that the Presidential Proclamation appears to be the "latest incarnation" of the "Muslim ban" originally promised by President Trump as a candidate for the presidency, and thus, violates the Establishment Clause of the First Amendment to the United States Constitution. Notably, the court found that the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Presidential Proclamation and that the Presidential Proclamation fails to adequately explain the need for the specific information-sharing response of an "unprecedented, sweeping nationality-based travel ban against majority-Muslim nations."

Additionally, the Maryland court held that the plaintiffs are likely to succeed on the merits of their claim that the Presidential Proclamation violates the non-discrimination provision of Section 1152(a) of the INA to the extent that it bars entry by immigrants on the basis of nationality. The court further noted that where the Presidential Proclamation fails to include a specified end date or requirement for renewal, it has effectively stopped the issuance of immigrant visas to immigrants from the designated countries indefinitely and, consequently, is the equivalent of a ban on issuing immigrant visas based on nationality.

The court's preliminary injunction is limited to barring enforcement of Section 2 against those individuals who have a credible claim of a bona fide relationship with a person or entity in the United States. Like the Hawaii court, the Maryland court held that the injunction does not apply to travelers from Venezuela or North Korea because the balance of equities favors the United States Government's position with respect to those two countries.

The Andrews Kurth Kenyon Labor & Employment team will monitor judicial review of the Presidential Proclamation and issue additional updates as warranted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions